Opinion
C043373.
10-23-2003
In re MONIQUE I., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. DOROTHEE M., Defendant and Appellant.
Appellant, the mother of the minor, appeals from the juvenile courts order terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Appellant contends that the juvenile court lacked subject matter jurisdiction at the section 366.26 hearing and that there was insufficient evidence to support the juvenile courts finding of adoptability. We shall affirm.
Further undesignated section references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
In November 1988, the Sacramento County Department of Health and Human Services (DHHS) filed a dependency petition concerning the minor shortly after her birth because both appellant and the minor tested positive for cocaine. The petition was sustained and the minor was placed with her maternal grandmother (the grandmother). Appellant was ordered to participate in various reunification services.
Appellant continued to use cocaine and did not comply with reunification services in other respects. By the 12-month review hearing, appellant was incarcerated. The social worker recommended a permanent plan of long-term foster care because the grandmother, with whom the minor had "a significant relationship," was unwilling to adopt the minor or become her legal guardian.
In December 1989, the juvenile court found there was not a substantial probability the minor could be returned to parental custody within six months and ordered a permanent plan of long-term foster care.
Early in the dependency proceedings, it was reported that the grandmother was "under a doctors care for heart problems and a diagnosis of cancer." The grandmother eventually reported that she was taking medication for her heart problems and her cancer was in remission. She remained adamant that she would be able to care for the minor on a long-term basis.
Through the years, the minor had various physical and behavioral problems. She showed signs of being "hyperactive" beginning at an early age. She also exhibited behavior that was injurious to herself and others, and she needed constant supervision. Beginning when the minor was three years old, she had problems eating without gagging, was underweight and caught colds easily. In 1995, it was reported that she had a slight heart murmur, "sickle cell anemia trait," and attention deficit hyperactivity disorder (ADHD).
Eventually, the minor was prescribed medication to address impulsivity, learning disabilities and problems concentrating and relating to other children. She showed improvement from the medication but she continued to have behavior problems as well as learning delays.
In 1997, the grandmother expressed interest in adopting the minor. A subsequent medical exam found that the minor was "a generally healthy child." The only remaining symptoms of "`sickle cell effect" were that the minor tended "to tire easily" and had occasional headaches and leg pains. By the third grade, the minor was reported to be "an excellent student," and there were no longer any "concerns about her cognitive or social development" although she continued to exhibit symptoms of ADHD.
In December 1997, the juvenile court referred the minor for adoptive placement under the statutory procedures then in effect, which involved a separate adoption proceeding in superior court. According to reports in 1998 and 1999, the minor continued to perform well in school, was considered a healthy child, and her ADHD was being controlled by medication.
In June 1999, the juvenile court set a hearing pursuant to section 366.26 and ordered DHHS to prepare an adoption assessment. However, in January 2000, it was reported that the grandmother had allowed unsupervised contact between the minor and appellant. Furthermore, there were substantiated allegations that the maternal grandfather had molested the minors sister in 1991. Although the grandparents were divorced, the grandmother had allowed the minor to have contact with the maternal grandfather. Additionally, the grandmother failed to disclose that she had married an incarcerated man with whom she had been corresponding, and she would not disclose the mans first name. As a result, the juvenile court ordered long-term foster care to remain the permanent plan.
The grandmother began attending counseling and, in 2001, it was recommended that she be granted guardianship of the minor. The minor continued to have no behavior problems in school, was showing no signs of "the sickle cell trait" and was responding positively to a change in medication to address her ADHD. The grandmothers therapist reported that the grandmother had completed therapy, had "gain[ed] insight into her issues with her family" and had benefited from treatment. The grandmother, by then 64 years old, reported that her health was good and she had no residual problems from cancer.
In May 2001, the juvenile court appointed the maternal grandmother to be the minors legal guardian and terminated dependency.
In August 2002, the juvenile court granted DHHSs petition to reopen the dependency proceedings and set a section 366.26 hearing, which was based on the grandmothers desire to pursue adoption of the minor. (§ 388.) The grandmother was also in the process of adopting the minors half sibling.
According to the report for the section 366.26 hearing, the minor had been diagnosed with scoliosis, and she continued to take medication for ADHD. Otherwise, she "appear[ed] to be developing age appropriately" and was doing well in school, although she "sometimes display[ed] a typical `teenage attitude," which the grandmother was able to handle. The social worker opined that the minor was "specifically adoptable" by the grandmother.
At the section 366.26 hearing, the juvenile court found the minor adoptable and terminated parental rights.
DISCUSSION
I
Appellant claims the juvenile court lacked subject matter jurisdiction to terminate her parental rights. Appellant is incorrect.
Prior to January 1, 1989, it was necessary to initiate a separate proceeding in superior court to free for adoption a child who was a dependent of the juvenile court. (See former § 366.25, subd. (d)(1).) In 1989, legislation went into effect that brought about a major overhaul of the dependency system. Included in this overhaul was the enactment of section 366.26, providing that proceedings to terminate parental rights regarding a dependent child are to be held in juvenile court. (§ 366.26, subd. (b).)
By its own terms, section 366.26 initially applied only in cases where a child was adjudged a dependent after January 1, 1989, the effective date of the legislation. (Former § 366.26, subd. (a).) Section 366.25, which set forth the pre-January 1, 1989, procedures for implementing a permanent plan in dependency cases, continued to apply in cases where the child was adjudged a dependent prior to January 1, 1989. (In re Jasmon O. (1994) 8 Cal.4th 398, 407, fn. 1.) However, Assembly Bill 1091, which became effective January 1, 1999, repealed section 366.25 and deleted the language in section 366.26 limiting its application to post-January 1, 1989 cases. (Stats. 1998, ch. 1054, §§ 35, 36.)
An unrelated statute with the same number was enacted in 1999 and was subsequently repealed.
The Legislative Counsels Digest for the bill explained the reason for these amendments: "Existing law specifies the procedures to be followed in the case of a minor who has been adjudged a dependent child of the court to determine the temporary placement of the child, or to permanently terminate parental rights or establish a legal guardianship for the minor. Existing law specifies different procedures and criteria in these cases depending upon whether the minor became a dependent child of the court prior to January 1, 1989, or on or after January 1, 1989. [¶] This bill would make the criteria currently applicable to a child who became a dependent child of the court on or after January 1, 1989, applicable regardless of when the child became a dependent child of the juvenile court." (Legis. Counsels Dig., Assem. Bill No. 1091 (1997-1998 Reg. Sess.) Stats. 1998, ch. 1054.)
The legislative changes that became effective in 1999 confer jurisdiction on the juvenile court to determine permanent planning for minors in all dependency proceedings regardless of when the adjudication of dependency occurred. The cases relied on by appellant are inapposite, because they were either decided before the effective date of this legislation (In re Jasmon O. , supra, 8 Cal.4th 398; In re Alyssa H. (1994) 22 Cal.App.4th 1249; In re John V. (1992) 5 Cal.App.4th 1201), or they rely on case law decided before that date (In re J. W. (2002) 29 Cal.4th 200, 205, citing In re Marilyn H. (1993) 5 Cal.4th 295, 303).
And, contrary to appellants assertion, California Rules of Court, rule 1463(a) does not provide that section 366.26 "only applies" to children who have been declared dependents after January 1, 1989. Rule 1463 states that it "applies to children who have been declared dependents after January 1, 1989" and that, for such children, "only section 366.26" and various provisions of the Family Code apply to proceedings to terminate parental rights. (Rule 1463(a).) This rule was adopted prior to the legislative changes at issue here, at a time when a distinction was still drawn between pre-1989 and post-1989 dependency cases. It provides that the Family Code provisions for freeing children for adoption (Fam. Code, § 7800 et seq.) do not apply to children declared dependents after January 1, 1989, but contains no provisions regarding children declared dependents prior to that date. Consequently, rule 1463(a) does not conflict with the later-enacted legislation requiring the application of section 366.26 in all dependency cases.
Further rule references are to the California Rules of Court.
In a similar argument, appellant cites Family Code section 7808, which provides: "This part [entitled "Freedom from Parental Custody and Control"] does not apply to a minor adjudged a dependent child of the juvenile court pursuant to subdivision (c) of section 360 of the Welfare and Institutions Code on and after January 1, 1989, during the period in which the minor is a dependent child of the court. . . ." Appellant argues that, because the statute excludes children adjudged dependents after January 1, 1989, from the adoption provisions contained therein, minors adjudged dependents before January 1, 1989, must be covered by the Family Code provisions.
As with rule 1463(a), Family Code section 7808 makes no provision for minors adjudged dependents prior to January 1, 1989. This is reasonable, as Family Code section 7808 was enacted before the 1999 legislative changes to the dependency scheme, which eradicated the distinction between pre- and post-1989 dependency cases.
Accordingly, we conclude the juvenile court had subject matter jurisdiction to terminate appellants parental rights.
II
Next, appellant claims there was insufficient evidence to support the juvenile courts finding that the minor was adoptable. We disagree.
Adoption is the permanent plan preferred by the Legislature. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) "In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated." (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; § 366.26, subd. (c)(1).)
Usually, the issue of adoptability focuses on the minor, "e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) However, "in some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child." (Id. at p. 1650.)
Such was the case here. The grandmother, who had cared for the minor since shortly after her birth, was committed to adopting the minor despite the many physical and emotional problems the minor had experienced at various times. No evidence was presented regarding any legal impediments to adoption by the grandmother. Under such circumstances, substantial evidence supports the juvenile courts finding that the minor was adoptable. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154 [substantial evidence standard of review applies to finding of adoptability].)
Appellant argues that "the present existence or nonexistence of a prospective adoptive family is not determinative of the issue[] of adoptability" and that a child may only be found adoptable based on the childs traits. As set forth in In re Sarah M., supra, 22 Cal.App.4th at page 1650, this simply is not the case when a viable, appropriate adoptive home has been identified. For the same reason, appellants argument—that the minor could not be found adoptable unless there were other approved families willing to adopt children with the minors characteristics—fails.
Appellant is correct that a prospective adoptive parents interest in adopting a child has been found insufficient to support a finding of adoptability. (In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) However, the grandmother, here, was not merely interested in adopting the minor; she had expressed her commitment to adopting the minor and had exhibited her willingness to permanently care for the minor throughout the protracted dependency proceedings.
Appellants characterization of the grandmother as a "fragile elderly woman" is simply unsupported by the record. While it is true there were some serious health concerns regarding the grandmother earlier in the dependency proceedings, these concerns had been addressed by the time of the section 366.26 hearing many years later. In any event, the grandmothers health problems never prevented her from adequately caring for the minor and there was no basis to conclude that the grandmother would be unwilling or unable to parent the minor in the future.
None of the cases cited by appellant are at odds with our conclusion. Appellant cites In re Jayson T. (2002) 97 Cal.App.4th 75, 85 (Jayson T.) (disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414) as support for the contention that "if a child is found to be adoptable at the section 366.26 hearing, the social worker should be able to find another prospective adoptive home." To the contrary, Jayson T. recognized "it is only common sense that when there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established." (97 Cal.App.4th at p. 85.) While the reviewing court in Jayson T. referred to "th[e] trap that a trial court may easily fall into" when it terminates parental rights based on the existence of a committed prospective adoptive placement that later falls through (id. at p. 88), this statement was made in the context of deciding whether an appellate court should accept posthearing evidence on this issue (ibid.).
In In re Asia L. (2003) 107 Cal.App.4th 498, 511-512, also relied on by appellant, the appellate court found insufficient evidence to support adoptability where the minors emotional problems required specialized placement and presented a potential obstacle to adoption, and no prospective adoptive families had been identified. (Ibid.) The current foster parents "willing[ness] to explore the option of adopt[ion]" was held to be too vague to support a finding of adoptability under such circumstances. (Id. at p. 512.) This case does not stand for the proposition suggested by appellant that "merely doing well in placement [i]s insufficient for finding children [a]re likely to be adopted," nor was this the basis for the juvenile courts finding that the minor, here, was adoptable.
Appellant also cites In re Josue G. (2003) 106 Cal.App.4th 725 (Josue G.), in which the juvenile court ordered a permanent plan of legal guardianship because the two-year-old minor was placed with 70-year-old foster parents who the court felt were too old to adopt a child of the minors age. (Id. at pp. 731-732.) Relying on principles pertaining to a childs general adoptability, the appellate court held that the juvenile court erred by focusing on obstacles to adoption by the current foster family when the evidence reflected that the minor was adoptable. (Id. at pp. 733-734.) The situation here is readily distinguishable. Unlike Josue G., here the juvenile court found the minor adoptable because the minor was in a suitable adoptive home.
In conclusion, we note that the position urged by appellant would lead to an anomalous result in that a child who, theoretically, might be difficult to place for adoption, but who is fortunate enough to find an appropriate and committed adoptive home, nonetheless would be deprived of the permanence and stability of adoption. We reject such reasoning.
DISPOSITION
The juvenile courts order is affirmed.
We concur: BLEASE, Acting P.J., and HULL, J.